[Cite as State v. Scott, 2016-Ohio-1480.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

 SANDUSKY COUNTY 

State of Ohio Court of Appeals No. S-15-012 

 

 Appellee Trial Court No. 14 CR 830 

v. 

Miller L. Scott DECISION AND JUDGMENT

Appellant Decided: April 8, 2016 

* * * * * 

 Thomas L. Stierwalt, Sandusky County Prosecuting Attorney, 

 and Norman P. Solze, Assistant Prosecuting Attorney, for appellee. 

 Karin L. Coble, for appellant. 

 Miller L. Scott, pro se. 

* * * * * 

 YARBROUGH, J. 

I. Introduction 

{¶ 1} This is an Anders appeal. Appellant, Miller Scott, appeals the judgment of 

the Sandusky County Court of Common Pleas, sentencing him to 60 months in prison 
2.

following a jury trial in which he was found guilty of one count of burglary and one 

count of assault. We affirm. 

A. Procedural Background 

{¶ 2} This matter originated upon an indictment entered on December 1, 2014, 

charging appellant with one count of burglary in violation of R.C. 2911.12(A)(1), a 

felony of the second degree, one count of assault in violation of R.C. 2903.13(A), a 

misdemeanor of the first degree, and one count of aggravated assault in violation of R.C. 

2903.12(A)(1), a felony of the fourth degree. These charges stemmed from an incident 

that occurred during the early morning hours of September 11, 2014, at a home in 

Fremont, Ohio. According to the indictment, appellant trespassed into the home, which 

was occupied at the time, by removing a window air conditioner and entering through the 

window. Upon entry, appellant proceeded to the bedroom and assaulted an occupant, 

A.S., who was sleeping at the time. 

{¶ 3} Appellant pleaded not guilty to the charges contained in the indictment, and, 

following the completion of discovery and other pretrial matters, a jury trial commenced 

on March 12, 2015. 

{¶ 4} At trial, the state called several witnesses. The first witness, Officer Antonio 

Olvera of the Fremont Police Department, was one of the officers who responded to the 

scene of the burglary on the morning in question. Upon arrival at the scene of the 

burglary, Olvera noticed that the owner of the home, Pamela Decker, was standing in her 

pajamas outside the home. Olvera proceeded to enter the home, where he noticed 
3.

appellant sitting by the doorway with his head in his hands. Appellant’s forehead was 

bleeding. Olvera questioned appellant as to why his forehead was bleeding, and 

appellant indicated that he was struck in the head with a table after being invited into the 

house by Decker. He stated that Decker invited him to the house via text message, and 

offered to show the text messages to Olvera. Olvera testified that appellant searched his 

phone for the text messages, but was unable to locate them. When pressed further, 

appellant stated that A.S. was the one who struck him in the head with the table. 

Appellant stated that he then began to fight with A.S. At first, appellant indicated that he 

entered the home through the front door. However, at the end of Olvera’s questioning, 

appellant stated that Decker let him into the home through the back door. 

{¶ 5} After questioning appellant, Olvera moved to a nearby bedroom where A.S. 

was being held. Inside the room, Olvera noticed that A.S. had a cut on his face. When 

asked about the cause of the cut on his face, A.S. told Olvera that he was assaulted by 

appellant while in bed. Startled, A.S. responded by striking appellant with a coffee table, 

allegedly in self-defense. 

{¶ 6} After speaking with appellant and A.S., Olvera questioned Decker as to the 

events that transpired earlier in the morning. Decker stated that she was in bed when she 

heard appellant pounding on the window and demanding to be allowed into the home. 

Decker then heard a noise, “and the next thing she knew, she saw [appellant] in the 

bedroom. When [appellant] started assaulting [A.S.], that’s when she ran out.” 
4.

{¶ 7} During Olvera’s testimony, the state entered several photographs into 

evidence. One of these photographs depicts a window air conditioner unit sitting on the 

ground outside one of the windows in the home, its power cord still plugged into the wall 

inside the home. Another photograph depicts damage to the window frame and debris on 

the floor, consistent with the stripping of the air conditioner unit from the window. 

Appellant explained that the air conditioning unit was knocked out of the window during 

the fight. However, Olvera testified that no blood was found near the window. Indeed, 

Olvera stated that blood was only visible inside the bedroom and around the bedroom 

door, where the two were fighting when officers arrived on the scene. No blood was 

found near the front door or back door. 

{¶ 8} Following the completion of Olvera’s testimony, the state called A.S. to the 

stand. A.S. testified that he was present at Decker’s home on the morning of the 

burglary. He stated that he went into the bedroom at around midnight and fell asleep. 

A.S. was awoken by the sound of pounding on a window, and he testified that he heard 

appellant demanding to be allowed inside the home. Shortly thereafter, appellant entered 

the bedroom. Upon entering the bedroom, appellant proceeded to punch A.S. in the nose, 

causing him to roll off of the bed. The two began to wrestle and, according to A.S., 

appellant punched him “a couple times” and bit him in the forehead and cheek. The fight 

then moved into the living room. Police arrived a short while later and broke up the 

fight. 
5.

{¶ 9} When pressed on cross-examination, A.S. acknowledged that he did not see 

appellant enter the home. However, A.S. maintained that he and Decker were the only 

persons inside the home on the morning of the burglary. Further, A.S. stated that he and 

Decker were inside the bedroom when appellant entered the home. Regarding 

appellant’s contention that the air conditioner was knocked out of the living room 

window during the fight, A.S. testified that he did not come into contact with the air 

conditioner during the fight, which occurred on the opposite side of the room from the air 

conditioner. 

{¶ 10} Next, Decker took the stand. Decker recalled receiving a text message 

from appellant, her ex-boyfriend, several hours prior to the burglary, in which appellant 

asked to come over to her home. According to Decker, she informed appellant that she 

would have to “take a rain check” because she was not feeling well. Decker testified that 

she did not grant appellant permission to enter her home on the morning of the burglary. 

She stated that appellant gained access to the home by removing the air conditioner from 

the living room window and climbing into the home through the window. Decker 

acknowledged that she did not observe appellant removing the air conditioner, but she 

stated that she overheard him as he was removing the air conditioner. She also testified 

that both entry doors on the home were locked at the time of the burglary. 

{¶ 11} After Decker’s testimony was complete, the state rested. After appellant’s 

Crim.R. 29 motion was denied, appellant took the stand and denied having entered 
6.

Decker’s home without permission. Specifically, appellant explained the events as 

follows: 

 When the bars closed, I went over to [Decker’s] house. I knocked 

on the door. Nobody answered. I went and knocked on the bedroom 

window, and I heard her wrestling around, so I went back and I knocked on 

the front door again, then she came and she opened the door, and she told 

me, she said meet me in the bedroom, I’ll be right in, and she walked 

toward the kitchen. When I went into the bedroom, I reached up for the 

light on the overhead * * *. When I * * * reached for it, all I seen was 

bright stars and somebody grabbed me in a choke hold and took their hand 

and started digging in my eye trying to scratch my eye out. About this 

time, I could feel like fluid running all [down] my face, and I reached back 

and I grabbed him and I flipped him over. I hit him a couple times, and I 

bit him, and when I bit him, he screamed, * * * and that’s when I knew it 

was [A.S.], so we fought in the bedroom. I’m almost at the point of 

bleeding to death [because] I’d lost so much blood, and when I came to 

again, I was standing in the middle of the living room and there was a 

police officer holding my arm to hold me up because I was getting ready to 

fall [because] I’d lost so much blood. 

{¶ 12} Regarding Decker’s assertion that the front door was locked the entire 

morning, appellant insisted that the front door was previously kicked in by a neighbor 
7.

and never repaired. While he did not deny that the front door was locked, appellant 

indicated that the damage to the door was such that it could be easily pushed open even 

when locked. He also testified that he previously secured the air conditioner to the 

window frame with screws at Decker’s request. At the end of direct examination, 

appellant stated that Decker allowed him into the home through the front door. He 

further testified that he did not enter the home through the living room window. 

{¶ 13} On cross-examination, appellant could not explain why he changed his 

story while responding to Olvera’s questions about how he entered the home. He stated 

that he was “delirious” as a result of losing so much blood from the fight with A.S., but 

he later acknowledged that he was not given any blood when he was transported to the 

emergency room later in the morning. 

{¶ 14} At the conclusion of the trial, the jury found appellant guilty of burglary 

and assault, but not guilty of aggravated assault. The trial court proceeded to sentencing, 

at which point the court found that the burglary and assault charges were subject to 

merger. The state elected to proceed on the burglary count, and the trial court sentenced 

appellant to 60 months in prison. Appellant timely appealed. 

B. Anders Requirements 

{¶ 15} Appointed counsel has filed a brief and requested leave to withdraw as 

counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 

(1967). Under Anders, if, after a conscientious examination of the case, counsel 

concludes the appeal to be wholly frivolous, she should so advise the court and request 
8.

permission to withdraw. Id. at 744. This request must be accompanied by a brief 

identifying anything in the record that could arguably support the appeal. Id. In addition, 

counsel must provide the appellant with a copy of the brief and request to withdraw, and 

allow the appellant sufficient time to raise any additional matters. Id. Once these 

requirements are satisfied, the appellate court is required to conduct an independent 

examination of the proceedings below to determine if the appeal is indeed frivolous. Id. 

If it so finds, the appellate court may grant counsel’s request to withdraw, and decide the 

appeal without violating any constitutional requirements. Id. 

{¶ 16} Having reviewed the brief filed by appellant’s counsel, we find that counsel 

has satisfied the requirements set forth in Anders. Appellant has also submitted a pro se 

brief. Thus, we will examine appellant’s assignments of error in addition to the 

assignments of error proposed by appellant’s counsel. 

C. Assignments of Error 

{¶ 17} In her Anders brief, appellant’s counsel proposes the following assignments 

of error: 

 Proposed Assignment of Error One: Appellant was denied Equal 

Protection when the only African-American was struck from the jury. 

 Proposed Assignment of Error Two: Appellant’s counsel rendered 

ineffective assistance by failing to properly preserve the Batson error for 

review. 
9.

 Proposed Assignment of Error Three: Appellant’s convictions are 

unsupported by sufficient evidence and are against the manifest weight of 

the evidence. 

 Proposed Assignment of Error Four: The trial court erred in failing 

to order a presentence investigation report, erred in sentencing appellant, 

and erred in imposing the costs of court-appointed counsel. 

{¶ 18} Additionally, in appellant’s pro se brief, he assigns the following errors for 

our review: 

 ASSIGNMENT OF ERROR ONE: Appellant’s Court Appointed 

Counsel rendered ineffective [a]ssistance by failing to file a pre-trial motion 

to suppress evidence tainted by constitutional Miranda Rights [v]iolations. 

 ASSIGNMENT OF ERROR TWO: Appellant’s Court Appointed 

Counsel rendered [i]neffective [a]ssistance by failing to seek an expert 

medical opinion to the severity of hi[s] client’s [h]ead injury. 

 ASSIGNMENT OF ERROR THREE: Appellant’s Court Appointed 

Counsel rendered ineffective assistance by failing to object to Prosecutor’s 

[l]ayman medical testimony. 

 ASSIGNMENT OF ERROR FOUR: Appellant’s Court Appointed 

Counsel rendered ineffective [a]ssistance by failing to object to the 

Prosecutor using recanted [h]earsay evidence in his closing arguments. 
10. 

II. Analysis 

A. Batson Challenge 

{¶ 19} In counsel’s first proposed assignment of error, she argues that appellant’s 

equal protection rights were violated when the trial court struck the only African 

American prospective juror from the jury. In her second proposed assignment of error, 

counsel contends that appellant was rendered ineffective assistance of trial counsel 

because trial counsel failed to ensure the record was clear as to the racial composition of 

the jury pool, thereby failing to preserve a Batson challenge for our review. 

{¶ 20} “Criminal defendants have a constitutional right to be tried by a jury 

selected by nondiscriminatory criteria.” State v. Johnson, 144 Ohio St.3d 518, 2015-

Ohio-4903, --- N.E.3d ----, ¶ 20, citing Batson v. Kentucky, 476 U.S. 79, 85-86, 106 S.Ct. 

1712, 90 L.Ed.2d 69 (1986). In Batson, the United States Supreme Court stated that a 

prosecutor may not “challenge potential jurors solely on account of their race or on the 

assumption that black jurors as a group will be unable impartially to consider the State’s 

case against a black defendant.” Id. at 89, 106 S.Ct. 1712. 

{¶ 21} Consistent with the court’s holding in Batson, a trial court must apply a 

three-step analysis when confronted with a claim of racially-based challenges to jurors. 

Batson at 96. Under the first step, a defendant must make a prima facie case that the 

prosecutor is engaged in racial discrimination. Id. at 96-97. To do this, the party must 

show that he is a member of a cognizable racial group, that the peremptory challenge will 

remove a member of his race from the venire, and that there is an inference of racial 
11. 

discrimination. Hicks v. Westinghouse Materials Co., 78 Ohio St.3d 95, 98, 676 N.E.2d 

872 (1997). “In determining whether a prima facie case exists, the trial court must 

consider all relevant circumstances, including statements by counsel exercising the 

peremptory challenge, counsel’s questions during voir dire, and whether a pattern of 

strikes against minority venire members has been exhibited.” State v. Swain, 6th Dist. 

Erie No. E-12-079, 2014-Ohio-1308, ¶ 17, citing Hicks at 98. 

{¶ 22} If the defendant establishes a prima facie case, the next step requires the 

prosecutor to provide a racially neutral explanation for the challenge. Batson at 97-98. 

Although a simple affirmation of good faith is not sufficient, the explanation “need not 

rise to the level justifying exercise of a challenge for cause.” Hicks at 98. The critical 

issue is whether discriminatory intent is inherent in counsel’s use of the strike and that 

the explanation is merely a pretext for excluding the potential juror on the basis of race. 

Id.

{¶ 23} Finally, in the third step, the court must decide whether the defendant has 

proved purposeful racial discrimination, taking all of the circumstances into 

consideration. Batson, 476 U.S. at 98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). “In doing 

so, the court must consider the circumstances of the challenge and assess the plausibility 

of the prosecutor’s explanation in order to determine whether it is merely pretextual.” 

Johnson, 144 Ohio St.3d 518, 2015-Ohio-4903, --- N.E.3d ----, at ¶ 21, citing Miller-El v. 

Cockrell, 537 U.S. 322, 339, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); State v. Frazier, 

115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 65. Relevant factors may 
12. 

include “the prosecutor’s demeanor; * * * how reasonable, or how improbable, the 

explanations are; and * * * whether the proffered rationale has some basis in accepted 

trial strategy.” Miller-El at 339. “In addition, race-neutral reasons for peremptory 

challenges often invoke a juror’s demeanor * * *, making the trial court’s firsthand 

observations of even greater importance.” Snyder v. Louisiana, 552 U.S. 472, 477, 128 

S.Ct. 1203, 170 L.Ed.2d 175 (2008). 

{¶ 24} When reviewing a claim of racially-motivated challenges to jurors on 

appeal, we defer to the trial court’s resolution under Batson absent a showing of clear 

error. State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 53. 

{¶ 25} In this case, the trial court permitted the state to strike a prospective juror, 

A.J., from the jury. According to appellate counsel, A.J. was the only African American 

prospective juror, although counsel acknowledges that the record is silent as to the racial 

makeup of the jury pool. During voir dire, A.J. responded in the affirmative when the 

prospective jurors were asked whether they personally knew any of the witnesses. When 

questioned further, A.J. informed the court that A.S., the victim of the assault, is her 

uncle. She was then asked whether she would give more weight to A.S.’s testimony than 

any other witness’s testimony. She responded: “Um, I guess I would be uncertain. I 

don’t know, I couldn’t give you a guarantee that I would or wouldn’t.” A.J. subsequently 

indicated a desire not to act as a juror since A.S. was involved in the case. 

{¶ 26} At the end of voir dire, the state asked that A.J. be stricken from the jury, 

opting to use one of its peremptory challenges. The state recognized that striking A.J. 
13. 

from the jury presented a Batson issue, but insisted that its challenge was not motivated 

by race. Rather, the state noted that A.J.’s uncle was a witness, and further explained that 

A.J. did not wish to serve as a juror. 

{¶ 27} Defense counsel did not object to the state’s use of its peremptory 

challenge. Instead, defense counsel appears to have agreed with the state’s basis for 

striking A.J., although the trial transcript is not completely clear on this point. 

{¶ 28} Even assuming appellate counsel is correct in her assertion that A.J. was 

the only African American prospective juror in this case, we find that the trial court did 

not commit clear error in striking A.J. from the jury. Indeed, the state offered raciallyneutral bases for its peremptory challenge, including the preexisting relationship between 

A.J. and A.S., and A.J.’s equivocation as to whether she would assign more weight to 

A.S.’s testimony than the testimony given by other witnesses. Moreover, there is no 

evidence in the record to suggest that the state’s explanation was pretextual. 

{¶ 29} Accordingly, counsel’s first proposed assignment of error is not well-taken. 

{¶ 30} Having found no Batson violations even after assuming the validity of 

counsel’s allegations that A.J. was the only African American prospective juror, it 

follows that appellant cannot demonstrate that he was prejudiced by his trial counsel’s 

failure to note A.J.’s race for the record, or to state the fact that A.J. was the only African 

American prospective juror. Having failed to establish prejudice, which is a necessary 

element in an ineffective assistance of counsel argument, Strickland v. Washington, 466 
14. 

U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we find that counsel’s second 

proposed assignment of error is not well-taken. 

B. Sufficiency and Manifest Weight 

{¶ 31} In counsel’s third proposed assignment of error, she argues that appellant’s 

convictions were not supported by sufficient evidence and were against the manifest 

weight of the evidence. 

{¶ 32} The Ohio Supreme Court has ruled that “the legal concepts of sufficiency 

of the evidence and weight of the evidence are both quantitatively and qualitatively 

different.” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). At its 

core, sufficiency of the evidence is a determination of adequacy and a court must 

consider whether the evidence was sufficient to support the conviction as a matter of law. 

Id. The proper analysis is “‘whether, after viewing the evidence in a light most favorable 

to the prosecution, any rational trier of fact could have found the essential elements of the 

crime proven beyond a reasonable doubt.’” State v. Williams, 74 Ohio St.3d 569, 576, 

660 N.E.2d 724 (1996), quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 

(1991), paragraph two of the syllabus. 

{¶ 33} In contrast, a manifest weight challenge questions whether the state has met 

its burden of persuasion. Thompkins at 387. When reviewing a manifest weight claim, 

 The court, reviewing the entire record, weighs the evidence and all 

reasonable inferences, considers the credibility of witnesses and determines 

whether in resolving conflicts in the evidence, the jury clearly lost its way 
15. 

and created such a manifest miscarriage of justice that the conviction must 

be reversed and a new trial ordered. The discretionary power to grant a 

new trial should be exercised only in the exceptional case in which the 

evidence weighs heavily against the conviction. State v. Lang, 129 Ohio 

St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220. 

{¶ 34} As noted above in our recitation of the facts, appellant was convicted of 

one count of burglary in violation of R.C. 2911.12(A)(1), and one count of assault in 

violation of R.C. 2903.13(A). R.C. 2911.12 provides, in relevant part: 

 (A) No person, by force, stealth, or deception, shall do any of the 

following: 

 (1) Trespass in an occupied structure or in a separately secured or 

separately occupied portion of an occupied structure, when another person 

other than an accomplice of the offender is present, with purpose to commit 

in the structure or in the separately secured or separately occupied portion 

of the structure any criminal offense. 

{¶ 35} We have previously stated that “the elements of burglary under R.C. 

2911.12(A)(1) require the state to prove that the defendant (1) by force, stealth, or 

deception (2) trespassed in an occupied structure when another person other than an 

accomplice was present (3) with the purpose to commit any criminal offense therein.” 

State v. Phillips, 6th Dist. Lucas No. L-14-1061, 2015-Ohio-632, ¶ 13. 
16. 

{¶ 36} Upon consideration, we find that the state introduced sufficient evidence as 

to each of these elements. Regarding the force element, Decker and A.S. testified that 

appellant entered the home by pulling the air conditioner from the window frame and 

crawling through the window. This testimony was supported by pictures entered into 

evidence showing the air conditioner lying on the ground outside the window, still 

plugged into the wall, with debris inside the home that appears to be consistent with 

forced entry. 

{¶ 37} The trespass element was supported by Decker’s statement that she did not 

grant appellant permission to enter her home on the morning of the burglary. The text 

messages between appellant and Decker, which were entered into evidence, indicate that 

Decker did not wish for appellant to come to her house because she was not feeling well. 

{¶ 38} Finally, Decker’s testimony contained sufficient evidence to meet the 

purpose element. Decker stated that appellant, while knocking on the bedroom window, 

told her that she would need to call the police if she did not allow him inside the home, 

suggesting that he was going to commit a criminal offense once inside. 

{¶ 39} Turning to appellant’s conviction for assault, R.C. 2903.13(A) states that 

“[n]o person shall knowingly cause or attempt to cause physical harm to another or to 

another’s unborn.” The evidence in this case clearly demonstrates that a fight occurred 

between A.S. and appellant, a fact that appellant did not deny in his testimony at trial. 

While appellant testified that he was not the aggressor in this fight, both Decker and A.S. 
17. 

refuted this testimony when they stated that appellant punched A.S. while A.S. was 

sleeping in Decker’s bedroom. 

{¶ 40} Viewing the foregoing evidence in a light most favorable to the 

prosecution, we find that a rational trier of fact could have found the essential elements of 

burglary and assault proven beyond a reasonable doubt. Moreover, having weighed the 

evidence and all reasonable inferences therefrom, and having considered the credibility of 

the witnesses, we find that this is not the exceptional case in which the evidence weighs 

heavily against the conviction. Accordingly, counsel’s third proposed assignment of 

error is not well-taken. 

C. Sentencing Issues 

{¶ 41} In her fourth proposed assignment of error, counsel argues that the trial 

court erred at sentencing by failing to order a presentence investigation report, imposing 

the costs of court-appointed counsel, and sentencing appellant to 60 months in prison. 

{¶ 42} First, counsel argues that the trial court erred in failing to order the 

preparation of a presentence investigation report prior to sentencing. Crim.R. 32.2 

provides: “In felony cases the court shall, and in misdemeanor cases the court may, order 

a presentence investigation and report before imposing community control sanctions or 

granting probation.” Further, R.C. 2929.19 requires that the court consider the 

presentence investigation report, “if one was prepared,” and R.C. 2951.03 prevents the 

imposition of community control until a written presentence investigation report has been 

reviewed by the court. Where it has been determined that a defendant is not eligible for 
18. 

community control, the trial court does not err in refusing to order a presentence 

investigation report. State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d 94 (1992). 

{¶ 43} According to the sentencing transcript, the court refused to order a 

presentence investigation report based upon its finding that a prison sentence was 

warranted and that appellant was not amenable to community control. Thus, we find no 

merit to counsel’s argument concerning the trial court’s refusal to order a presentence 

investigation report. 

{¶ 44} Next, counsel argues that the trial court erred in ordering appellant to pay 

the costs of court-appointed counsel under R.C. 2941.51(D), which provides, in relevant 

part: 

 The fees and expenses approved by the court under this section shall 

not be taxed as part of the costs and shall be paid by the county. However, 

if the person represented has, or reasonably may be expected to have, the 

means to meet some part of the cost of the services rendered to the person, 

the person shall pay the county an amount that the person reasonably can be 

expected to pay. 

{¶ 45} Here, the trial court specifically found that appellant had the ability to pay 

the costs of his court-appointed counsel. This finding was supported by appellant’s 

testimony at trial that he was currently employed, which was reiterated by counsel at 

sentencing. Thus, we find no error in the trial court’s imposition of costs for courtappointed counsel. 
19. 

{¶ 46} Finally, we turn to counsel’s argument that the trial court, in sentencing 

appellant, did not comply with the sentencing requirements outlined in the Revised Code. 

{¶ 47} We review felony sentences under the two-prong approach set forth in R.C. 

2953.08(G)(2). R.C. 2953.08(G)(2) provides that an appellate court may increase, 

reduce, modify, or vacate and remand a disputed sentence if it clearly and convincingly 

finds either of the following: 

 (a) That the record does not support the sentencing court’s findings 

under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of 

section 2929.14, or division (I) of section 2929.20 of the Revised Code, 

whichever, if any, is relevant; 

 (b) That the sentence is otherwise contrary to law. 

{¶ 48} Having reviewed the record at the sentencing hearing and the subsequent 

judgment entry, we find that the trial court adhered to the statutory sentencing 

requirements. Since appellant was convicted of burglary, a felony of the second degree, 

R.C. 2929.13(B), which governs sentencing for fourth and fifth degree felonies, does not 

apply. Moreover, the court specifically found that appellant was not amenable to 

community control. Consequently, a presumption in favor of prison time was applicable 

under R.C. 2929.13(D). R.C. 2929.14(B)(2)(e) and (C)(4) are inapplicable here as 

appellant is not a repeat violent offender and the court did not impose consecutive 

sentences. Likewise, R.C. 2929.20(I), relating to hearings on motions for judicial release, 

does not apply in this case. 
20. 

{¶ 49} Regarding the principles and purposes of sentencing under R.C. 2929.11 

and the sentencing factors contained in R.C. 2929.12, we note that the trial court did not 

expressly indicate its consideration of these statutes. However, the court demonstrated its 

consideration of the principles and purposes of sentencing when it stated the following at 

the sentencing hearing: “My obligation is to attempt to protect the public from future 

crime and to craft an appropriate punishment for * * * your behavior.” Further, we have 

stated that “[a] sentencing court is not required to use any specific language to 

demonstrate that it considered the applicable seriousness and recidivism factors under 

R.C. 2929.12.” State v. Williams, 6th Dist. Sandusky No. S-12-039, 2014-Ohio-2693, 

¶ 8, citing State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000). Indeed, the 

Supreme Court of Ohio has stated: “where the trial court does not put on the record its 

consideration of R.C. 2929.11 and 2929.12, it is presumed that the trial court gave proper 

consideration to those statutes.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 

896 N.E.2d 124, ¶ 18, fn. 4, citing State v. Adams, 37 Ohio St.3d 295, 525 N.E.2d 1361 

(1988), paragraph three of the syllabus. 

{¶ 50} Turning to whether appellant’s sentence was contrary to law, we note that 

appellant’s 60-month prison sentence was within the acceptable range of punishment for 

a felony of the second degree. R.C. 2929.14(A)(2). Thus, we find that the sentence was 

not contrary to law. 
21. 

{¶ 51} In light of the foregoing, we find that the trial court did not err in its 

imposition of sentence in this case. Accordingly, counsel’s fourth proposed assignment 

of error is not well-taken. 

D. Appellant’s Pro Se Ineffective Assistance Arguments 

{¶ 52} In each of appellant’s pro se assignments of error, he contends that he 

received ineffective assistance of trial counsel. 

{¶ 53} In order to demonstrate ineffective assistance of counsel, appellant must 

satisfy the two-prong test developed in Strickland v. Washington, 466 U.S. 668, 687, 104 

S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, appellant must show counsel’s performance 

fell below an objective standard of reasonableness, and a reasonable probability exists 

that, but for counsel’s error, the result of the proceedings would have been different. Id.

at 687-688, 694. 

{¶ 54} In his first assignment of error, appellant argues that his counsel was 

ineffective for failing to file a motion to suppress evidence that was obtained during law 

enforcement’s initial questioning of appellant at Decker’s home. Appellant contends that 

this evidence should have been suppressed since Olvera did not inform him of his 

Miranda rights prior to questioning him. 

{¶ 55} Concerning the applicability of Miranda warnings, the Supreme Court of 

Ohio has stated: “the requirement that police officers administer Miranda warnings 

applies only when a suspect is subjected to both custody and interrogation.” State v. 

Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, 964 N.E.2d 1037, ¶ 24. In other words, 
22. 

“Miranda rights only attach when both custody and interrogation coincide.” State v. 

Tellington, 9th Dist. No. 22187, 2005-Ohio-470, ¶ 8, citing State v. Wiles, 59 Ohio St.3d 

71, 83, 571 N.E.2d 97 (1991). The appropriate inquiry for determining if an individual 

has been placed in custody is whether, under the totality of the circumstances, a 

reasonable person would believe he is not free to leave. State v. Gumm, 73 Ohio St.3d 

413, 429, 653 N.E.2d 253 (1995), citing United States v. Mendenhall, 446 U.S. 544, 554, 

100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). 

{¶ 56} Here, appellant was not in custody during Olvera’s questioning. Indeed, 

appellant advances no argument and points to no facts that would suggest that he was not 

free to leave during Olvera’s initial questioning. Thus, appellant’s Miranda rights did not 

attach. Accordingly, appellant’s trial counsel was not incompetent for failing to file a 

motion to suppress based on Olvera’s failure to advise appellant of his Miranda rights. 

{¶ 57} Furthermore, we find that appellant has failed to demonstrate a reasonable 

probability that the result of the proceedings would have been different had trial counsel 

filed a motion to suppress. Even after excluding the evidence obtained by Olvera during 

his conversation with appellant, the testimony provided by A.S. and Decker, coupled with 

the photographs taken at Decker’s home on the morning of the burglary, provides ample 

evidence to support appellant’s convictions and refute his trial testimony. Accordingly, 

appellant’s first assignment of error is not well-taken. 

{¶ 58} In his second assignment of error, appellant argues that his trial counsel 

was ineffective for failing to introduce expert testimony as to the severity of the head 
23. 

injury he sustained during his fight with A.S. “[D]ecisions, such as the calling of 

witnesses, are within the purview of defense counsel’s trial tactics.” State v. Lugli, 6th 

Dist. Erie No. E-01-032, 2003-Ohio-479, ¶ 23, citing State v. Coulter, 75 Ohio App.3d 

219, 230, 598 N.E.2d 1324 (12th Dist.1992). Thus, we find no merit to appellant’s 

contention that his trial counsel was ineffective for failing to call an expert witness to 

establish the severity of his head injury. Moreover, appellant does not offer any 

explanation as to how his head injury impacted the outcome of this case. Therefore, his 

second assignment of error is not well-taken. 

{¶ 59} In his third assignment of error, appellant urges that his trial counsel was 

ineffective insofar as counsel failed to object to the state’s layman medical testimony. 

{¶ 60} Having reviewed the record in its entirety, we fail to find any instances in 

which the witnesses called by the state at trial offered medical testimony. Contrary to 

appellant’s assertions, no medical opinions requiring an expert were provided by the state 

in this case, and appellant fails to identify any such opinions in the record. Accordingly, 

appellant’s third assignment of error is not well-taken. 

{¶ 61} In his fourth assignment of error, appellant asserts that his counsel was 

ineffective for failing to object to the state’s use of “recanted hearsay evidence” during 

closing arguments. Specifically, appellant objects to the state’s use of Decker’s statement 

that appellant entered her home and assaulted A.S., despite her further clarification that it 

was dark inside the bedroom. Appellant appears to be asserting that the state should not 

have been permitted to reference Decker’s statement that appellant assaulted A.S. 
24. 

because the reliability of that statement was in question in light of Decker’s testimony 

that it was hard to see in the bedroom because of poor lighting. What is unclear from 

appellant’s brief is how these statements constituted hearsay. In any event, appellant has 

once again failed to indicate how he was prejudiced by the state’s use of such statements 

during closing arguments. Thus, we find no merit to appellant’s contention that trial 

counsel was ineffective in failing to object during the state’s closing arguments. 

{¶ 62} Accordingly, appellant’s fourth assignment of error is not well-taken. 

III. Conclusion 

{¶ 63} This court, as required under Anders, has undertaken our own examination 

of the record to determine whether any issue of arguable merit is presented for appeal. 

We have found none. Accordingly, we grant counsel’s motion to withdraw. 

{¶ 64} The judgment of the Sandusky County Court of Common Pleas is affirmed. 

Costs are hereby assessed to appellant in accordance with App.R. 24. The clerk is 

ordered to serve all parties, including the defendant if he has filed a brief, with notice of 

this decision. 

Judgment affirmed. 
25. 

 State v. Scott 

 C.A. No. S-15-012 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Arlene Singer, J. _______________________________ 

JUDGE 

Thomas J. Osowik, J. 

_______________________________ 

Stephen A. Yarbrough, J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.sconet.state.oh.us/rod/newpdf/?source=6.